watch which was taken from the relator's pocket at the time of his arrest.
The circumstances leading to relator's arrest may be summarized as follows: Lee Parker testified that on July 15, 1966, at approximately 11:00 P.M., after stopping at a bar for a drink, he was walking on Larchwood Avenue in Philadelphia towards his home, when two or three persons assaulted and brutally beat him. Parker testified that he could not make a positive identification due to darkness and dizziness at the time. At trial a gold watch was exhibited which Parker identified as being similar to the round, gold watch which had been stolen from him during the aggravated robbery.
Officer Richard Napoliello testified that at 1:40 A.M. on July 16, 1966, he received a call over his police car radio announcing, "5900 block of Larchwood Avenue, strong-arm robbery in progress." A short time later, as he reached the location, another call came over the radio which advised: "Be on the lookout for a colored male, wearing dark clothing and a straw hat." At that moment, the officer observed a black male fitting the description standing behind a panel truck parked on the northeast corner of 59th and Larchwood Avenue on 59th Street. The man observed was standing near the front of the truck and was looking through its windows west on Larchwood Avenue at oncoming police cars. Officer Napoliello, who was proceeding west from 58th Street on Larchwood Avenue, was therefore at the relator's back. The officer turned his patrol car and stopped even with the truck. When he climbed out of his car the observed suspect was no longer visible, but when Officer Napoliello looked underneath the truck, he found the relator. After apprehending the relator with his hands, the police officer made a quick "frisk" of relator's outer clothing and felt a hard object in the suspect's right front jacket pocket. Officer Napoliello then placed his hand in the pocket and removed the object, which turned out to be a round gold watch. It was this watch which Parker identified at trial. When asked how he came to have it in his possession, the relator replied that he had found it.
When the relator testified at trial, he denied robbing Parker, but admitted that he had been in a bar on the night in question until 10:30 P.M. He also testified that he had been in a fight with Parker and an unidentified man around 11:00 P.M. on that night; that he left the scene after two boys chased the two other men down the street; and that he found the watch lying on the ground at 59th Street and Larchwood Avenue. The relator also denied that he was under the truck for the purpose of hiding when he was found by Officer Napoliello, stating that he was there only to retrieve some change which had dropped out of his shirt pocket.
The issue raised by the above rights under the Fourth Amendment. Dispositive of this issue, however, is our determination as to whether the warrantless search of the relator's clothing and person was constitutionally permissible. We are convinced that it was.
Initially, we find that relator was "arrested" (or "seized") when Officer Napoliello apprehended him from underneath the panel truck and restrained relator's freedom to walk away. See Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Further, we conclude that Officer Napoliello had probable cause to arrest the relator at this point because of the following combination of factors: (1) his knowledge that a robbery had been committed; (2) relator matched the description of the robber; and (3) relator's unusual and suspicious conduct. Thus, the subsequent limited search
of the relator's clothing and person, made incident to a lawful arrest, was valid and the fruit of that search (i.e. the watch) was admissible in evidence. See Sibron v. New York, 392 U.S. 40, 66-67, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).
Even were we to find that no probable cause existed for the arrest of the relator, we would nonetheless conclude that the search was valid. Officer Napoliello knew that a robbery had been committed when he noticed the relator, who fit the description of the robber. Add to this the subsequent unusual and suspicious conduct of the relator and it was reasonable for Officer Napoliello to conclude that the relator may be involved in criminal activity, and that the relator, a suspected robber, may be armed and dangerous. See Terry v. Ohio, supra ; Commonwealth v. Berrios, 437 Pa. 338, 263 A. 2d 342 (1970). Officer Napoliello did not engage in an unrestrained and thorough examination of relator and his personal effects. However, while patting down relator's outer clothing, Officer Napoliello felt a hard object in his pocket which might have been used as a weapon. He seized the object and discovered it to be a watch, a potential item of evidence of the crime of robbery. Thus, the search was reasonably limited in scope to the accomplishment of the goal which justified its inception -- the protection of the officer by disarming a potentially dangerous man. Accordingly, even were we to find that there was no probable cause to arrest relator, the search of his person was constitutionally permissible and the fruit of that search was properly admissible in evidence. See Terry v. Ohio, supra.
Relator's petition for a writ of habeas corpus will, therefore, be denied.